Metropolitan News-Enterprise


Monday, June 8, 2020


Page 1


Court of Appeal:

Woman Facing Deportation May Challenge 1991 Drug Conviction

Majority Says 2017 California Supreme Court Opinion Requiring Advisement That Guilty Plea ‘Will’ Have Immigration Consequences—Not ‘May’—Applies Retroactively


By a MetNews Staff Writer


The Court of Appeal for this district on Friday paved the way for a woman to have her 1991 conviction for possession for sale of cocaine base vacated, sparing her from deportation, because she was advised at the time of her no-contest plea that there “may” be immigration consequences rather than that there “will” be.

Such a warning was not then required, but did become mandatory under the California Supreme Court’s 2017 decision in People v. Patterson which relied on the U.S. Supreme Court’s 2010 holding in Padilla v. Kentucky.

Presiding Justice Arthur Gilbert of Div. Six, joined by Justice Stephen Perren, declared that Los Angeles Superior Court Judge Steven D. Blades erred in denying the motion to vacate brought by Josefina Ruiz. Blades held in 2019 that her unsuccessful 2017 motion had a collateral estoppel effect; Gilbert said it didn’t because she was proceeding in 2019 under a version of a statute—Penal Code §1473.7—that did not take effect until Jan. 1 of that year.

The new version, Gilbert said, “facilitated new challenges to convictions based on immigration advisement errors.”

Justice Kenneth Yegan dissented, saying that Patterson creates a new procedural rule and should not be applied retroactively.

Gilbert’s Opinion

Gilbert wrote:

“Assume a defendant wishes to plead guilty to a crime. She is an immigrant and is told: 1) her plea of guilty may make her ineligible to become a U.S. citizen; or 2) her plea of guilty will make her ineligible to become a U.S. citizen. Is there a significant distinction between the two advisements? Our Supreme Court and the Legislature think there is.

“We, like all courts, must follow this view even when it involves the reversal of a plea of guilty that occurred three decades ago. We are mindful of the dissent’s concerns, but the Supreme Court and the Legislature have spoken. The result here is required by law.”

He cited Patterson. The defendant in that case, like Ruiz, was only advised that pleading guilty to a drug offense “may” have adverse immigration consequences, not that it would.

Cites Errors

Based on the 2018 decision in Patterson, Gilbert said, Ruiz should have been advised in 1991 “that immigration consequences were mandatory”; her lawyer in 2017 should have sought to have the conviction vacated based on her not having been so advised; and the judge who heard her motion in 2017 “erred in ruling she was properly advised.”

In broadening §1473.7, the presiding justice said, the Legislature “intended to retroactively target convictions based on the type of inadequate immigration advisements that occurred in this case.,” adding:

“Preventing Ruiz from having a hearing on the merits of her motion would undermine the new law’s legislative intent and would condone a facially invalid advisement without providing a remedy for relief.”

Yegan’s Dissent

Yegan recited:

“About thirty years ago, appellant entered into a negotiated disposition of her criminal case. She avoided prison. Now she seeks to vacate the conviction altogether because the federal government seeks to impose an adverse immigration consequence. With the aid of a new statute (Pen. Code, § 1473.7) and new California Supreme Court precedent (People v. Patterson) which relied on United States Supreme Court precedent (Padilla v. Kentucky…), she may well be successful according to the majority opinion.”

He pointed out that “[n]o California Supreme Court case says that Patterson is retroactive” that the U.S. Supreme Court held in 2013 that Padilla is to be applied prospectively, only.

“So, why should Patterson be retroactive?” he asked rhetorically.

The jurist continued:

“…Patterson does not resolve or even mention retroactivity. It declares a new procedural rule and I would not apply it retroactively.”

Provides Comments

Yegan commented:

“The Legislature and the Supreme Court have shown concern with the defendant’s rights at the time of a guilty plea. But the People of the State of California have rights too. These rights must be considered in the equation. If appellant is successful in vacating her plea, how are the People going to prove a thirty-year-old narcotics case? The present state of the law not only prejudices the People, it may allow an unfair result which has absolutely nothing to do with guilt or innocence. This devalues the work of the superior court when it took and accepted the negotiated disposition. If successful, and if the People cannot now prove the case, appellant has, in legal contemplation, never been convicted and is not subject to immigration consequences. This will certainly be a surprise ending for this criminal action.”

He questioned whether it would have been accurate to tell her in 1991 that the plea “will” create adverse immigration consequences rather than “may,” noting:

“She was not then deported and apparently quietly lived in the United States for thirty years!”

The dissenter remarked:

“Now it is obvious why appellant is attacking the plea and I have some sympathy for her. She may well have been a model citizen after her 1991 crime. But there is another way to look at this. If she should have been deported in 1991, she has had the benefit of living in the United States for thirty years.”

The case is People v. Ruiz, 2020 S.O.S. 2606.


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